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The Upper Tribunal has recently made a significant decision in a case concerning an independent school and their exclusion of a disabled pupil, ruling that the First Tier Tribunal has jurisdiction to make an order compelling an independent school to reinstate the pupil it had excluded. The Upper Tribunal also ruled that First Tier Tribunals have wider powers to make such orders as they see fit (including an order for an apology to be made) and that those orders can be enforced in the High Court or by the Equality and Human Rights Commission.

The case involved a ten year old child, who had ADHD, sensory processing difficulties and emotional and social difficulties arising from trauma in early childhood and in the womb. The child had a number of behavioural issues and was aggressive towards other pupils. The school had made a number of reasonable adjustments to avoid substantial disadvantage to the pupil, but eventually, as a result of consistent behavioural issues and 37 incidents of unprovoked aggression, the pupil was permanently excluded from the school.

The following questions were considered by the Upper Tribunal:

  1. whether the First Tier Tribunal has power to order reinstatement of an expelled pupil,
  2. the means by which the decisions of the First Tier Tribunal can be enforced, if not by the Tribunal itself,
  3. whether it is appropriate to order reinstatement (given the historic reluctance of the courts to order specific performance of contracts involving personal service/contracts of supervision), and
  4. the appropriateness of ordering an apology in SEND cases.

The school sought to argue that the First Tier Tribunal did not have the power under the legislation to make an order for reinstatement and that instead the Tribunal’s powers were limited to making recommendations. They also sought to argue that the Tribunal did not have powers of enforcement. In addition, they considered that an apology would have no true value in the circumstances.

The Upper Tribunal heard the appeal and made the following findings:

  • The First Tier Tribunal would be rendered a “toothless” body if its powers were limited to making declarations that there had been a breach of the Equality Act 2010, or making recommendations. A power to order reinstatement would appear to be included within the jurisdiction of the Tribunal which is set out in the widest terms in the legislation “The Tribunal may make such order as it thinks fit” (section 9(2), part 3, Schedule 17, Equality Act 2010). Therefore, the First Tier Tribunal did have the power to make binding orders, including that the school should reinstate the pupil.
  • Whilst the Tribunal itself does not have the power to enforce its own decisions, one of the parties can rely on the power of the High Court to commit for contempt of court in the event of non-compliance with the order, or the Equality and Human Rights Commission could apply for injunctive relief.
  • The reluctance of the courts to order specific performance of contracts involving personal service is not an absolute bar. Further, this was not a case which involved the breakdown of trust and confidence; there was still an ongoing relationship of trust and confidence as the pupil’s sister attended the school.
  • The parents had sought an apology from the school from the outset, suggesting that they considered it would be of value to the pupil. Consequently, the Upper Tribunal found that there was value in an apology and that it was appropriate in these circumstances.

Impact for schools

This is a noteworthy decision which will have an impact for schools in terms of how they should deal with issues concerning pupils with disabilities and special educational needs. Schools should consider the following:

  • The expulsion or required removal of a disabled pupil could be found to be discriminatory, and whilst such a move might be justifiable, careful consideration should be given to whether expulsion or required removal does achieve a legitimate aim, and if so, whether it is proportionate.
  • Whether it would be appropriate to seek advice from the local authority or CAMHS in relation to behavioural issues; the authorities may be able to make recommendations or offer guidance as to how the school can move forward. One of the observations in this case was that the school did not seek appropriate advice from these authorities prior to making a decision on exclusion.  
  • Ensuring that the behaviour policy is applied consistently and fairly to pupils. In this case, it was noted that the behaviour policy was applied more harshly in relation to this pupil than other pupils who had been violent.
  • The level of communication with the parents, ensuring transparency and clear communication so that parents are aware of steps that the school may consider taking when dealing with behavioural issues and the possibility of suspension / expulsion. In this case, it was noted that the school should have discussed its growing concerns with the parents, and that the parents were not sufficiently warned that exclusion might be an outcome. 
  • Where a school is concerned about a pupil’s escalating behaviour, carrying out an urgent review of the pupil’s Education, Health and Care Plan (if there is one) or individual education plan and consider additional support.

If you require further information about anything covered in this briefing, please contact Shehnal Amin, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, October 2019

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